ACO Judicial Review: political victories, legal setbacks – good news on costs

Important political wins and favourable costs ruling override disappointment of legal defeat in JR4NHS vs Department of Health and NHS England – ACO consultation launched 3rd August

On 5th July, the High Court handed down its judgement on the judicial review brought by the JR4NHS claimants against the Secretary of State for Health & Social Care and NHS England on their introduction of Accountable Care Organisations (ACOs). We also now have the ruling on costs, read more below.

NHS England has now launched the consultation extracted from the Department of Health and NHSE by our five JR4NHS claimants. They will consult on the contracting arrangements for Integrated Care Providers (ICPs), ‘formerly known as’ accountable care organisations (ACOs).

The 12 week consultation will be from Friday August 3 to Friday October 26 and people can give their views on line or by post. NHS England will also hold engagement events during the consultation period to listen to stakeholders’ views. [NHS England]

After our update on the JR verdict and the adjudication on costs which follows below, we have put together a timeline reminding us of the dramatic sequence of events over the last 10 months which has resulted in a significant check on government and NHS England’s plans to break up the NHS permanently into 44 or more non-NHS bodies in the form of ACOs. Here is part of the statement by the JR4NHS team and the link to the full statement:

Judgment – the campaign moves on to different terrain

We had originally brought our claim on four grounds – two on the lack of proper consultation, one on the legality of the idea itself, and one on grounds of lack of clarity and transparency.  We withdrew our claim on the consultation grounds when our opponents conceded that they would not proceed without a full national consultation, so this success was in the bag.

Unfortunately, the Court has found against us on the law on the other two grounds.

On legality – whilst making clear that he was not deciding on the merits of ACOs, and acknowledging that we raised “perfectly good and sensible questions…..about the ACO policy and the limitations of the terms and conditions in the draft ACO Contract” – Mr Justice Green decided that the ACO policy is lawful because the Health and Social Care Act 2012 gives very broad discretion to Clinical Commissioning Groups when commissioning services.

And on clarity and transparency – whilst resoundingly rejecting the government’s argument that the principle did not apply “in relation to what by common accord is intended to amount to radical and transformational changes in the way in which health and social care is delivered” – he decided that the principle was not yet engaged.

For more about the judgment and the very favourable ruling on costs see here.

Positive news on legal costs

On 2nd August, Mr Justice Green announced his decision on who should pay the costs of the case. His decision was a vindication for the four claimants, and the now deceased Professor Hawking, and is really good news. The JR4NHS team’s statement starts here and can be read in full at their website:

Usually, the loser has to pay the winner’s costs, but on this occasion he has ordered the government and NHS England to pay us  our costs up to 18th January 2018 because “the Defendants changed their minds about full nationwide consultation and the use of the ACO model by early adopters” and also because “in some measure there was a degree of confusion caused by the use by the Secretary of State of misleading language to describe the process of appointment of ACOs (designation) and as to the issue of delegation”.

He also ordered us to pay only 65% of the defendants’ costs after that date because [the Department of Health and NHSE] had failed in their arguments that the case was brought too late, and that we did not have standing to bring the case …

… we had “acted in the public interest in bringing the claim and have identified some serious and important issues which will need to be considered  during the course of the consultation, the substance of which will have been improved by the airing and ventilation of the Claimant’s concerns and criticisms”.

The judge also noted that we had “succeeded on certain subsidiary points of law arising under the outstanding substantive grounds”. [read more here]

Colin Hutchinson, Allyson Pollock, Sue Richards, Graham Winyard

Timeline of the Judicial  Review

• November 2017 – notice served on Jeremy Hunt and NHS England of the four claimants intention to apply for judicial review (JR) to stop NHS England from introducing new commercial, non-NHS bodies to run health and social services without proper public consultation and without full Parliamentary scrutiny. The four claimants launched their appeal fund on Crowdjustice.
• December 2017 – Professor Stephen Hawking joined Professor Allyson Pollock, Dr Colin Hutchinson, Professor Sue Richards and Dr Graham Winyard as ‘The Famous Five’ take on Government and NHSE.
• January 2018 – The High Court judge, Mrs Justice Cheema-Grubb granted the JR4NHS the right to judicial review (JR). Hunt made his first major concession announcing that there would be a public consultation on the accountable care organisation (ACO) model contract after all – one of the major points in the JR4NHS legal case
• early February 2018 – The High Court judge ruled that the JR4NHS challenge met the ‘statutory test of public interest’ for a JR and the attempt by Hunt’s Department of Health and NHS England to impose a threat of punitive, uncapped costs was judged ‘not to be in the public interest’. NHSE changed terminology to try to downplay the toxic connection of ACOs to US health systems: accountable care systems (ACS) and organisations (ACO) were to be repackaged as integrated care systems and organisations with integrated care partnerships planning ‘voluntarily’ to prepare for these embedded organisational changes.

• 

  late February 2018 – KONP’s co-chair Dr Tony O’Sullivan joined three of the four JR claimants to give
  oral evidence at the Commons Select Committee on Health & Social Care enquiry into sustainability and transformation plans and accountable care organisations, now re-named Integrated Care: organisations, partnerships and systems.  By then Hunt had made further concessions to the main legal challenges of the JR4NHS:

  • Hunt had already agreed to a public consultation but insisted that he would go ahead with ‘secondary legislation’ as a work-around the primary legislation making his ACO contract illegal.
  • Hunt reluctantly conceded that he would not ‘lay down’ statutory (secondary) legislation to allow use of the ACO model contract. By so doing, he was acknowledging the postponement of the introduction of first ACOs by 1st April – a setback to his and NHSE’s stated intention.
  • Subsequently, NHSE announced that the public consultation would not take place until after the JR verdict.

• March 2018 – in the early hours of Wednesday 14 March came the very sad news of the death of Professor Stephen Hawking, the fifth of the claimants in the JR4NHS.

• May 2018 – as the days of the JR approached, 23-24 May, the four remaining JR4NHS claimants repeated their pledge to fight the JR, inspired by Professor Hawking’s determination to fight for the NHS to the very end of his life. There was great support for the JR4NHS team outside the Courts on both days and inside Court 76 where the drama unfolded.

 

• June 2018 – The awaited report of the Commons Health & Social Care Select Committee was published early June. It failed to make clear recommendations to stop ACOs or to oppose privatisation of hitherto NHS organisations. Nevertheless many of its recommendations gave implicit, though unattributed acknowledgment to the powerful evidence of campaigners, including the JR4NHS claimants at the Select Committee, in stating that primary legislation should be used if pilot ACOs were to be rolled out, and that ACOs, if pursued, should be explicitly NHS bodies.
• late June 2018 – responding to the dedication and success of campaigners, as the 70th anniversary of the NHS approaches, the Labour Party made one of its clearest commitments yet to halt privatisation and to return the NHS to its Bevanite founding vision, promising the drawing up of primary legislation to renationalise the NHS in readiness for a Labour government.
• July 2018 – on the 70th anniversary of the NHS the High Court handed down its judgement on the judicial review. The Court has found against the JR4NHS team on the law on the remaining two grounds.
  • On legality – Mr Justice Green acknowledged that “perfectly good and sensible questions…..about the ACO policy and the limitations of the terms and conditions in the draft ACO Contract” were raised; but that the ACO policy was lawful because the Health and Social Care Act 2012 gives very broad discretion to Clinical Commissioning Groups when commissioning services.
  • On clarity and transparency – he resoundingly rejected the Government’s argument that the principle did not apply “in relation to what by common accord is intended to amount to radical and transformational changes in the way in which health and social care is delivered”. However, he decided that the principle was not yet engaged because the consultation (extracted from Hunt) was still to come.
• 10 July 2018 – by now we have said goodbye to Jeremy Hunt, the much despised and longest lasting of Health secretaries, who has become Foreign Secretary.

• 

  11 July 2018 – Eleanor Smith presented her 10-minute Rule bill on the NHS reinstatement in Parliament, whilst a rally of supporters gave this their vociferous backing outside. The bill passed this first reading unopposed and has been scheduled for its second reading Friday 26 October – we will monitor where it is placed on the agenda for that day.

 

 

 

• August 2018 – Mr Justice Green gave his very positive ruling on the costs of the JR4NHS challenge. See above.

Sincere thanks and congratulations to Dr Colin Hutchinson, Professor Allyson Pollock, Professor Sue Richards, Dr Graham Winyard – and deep gratitude in sadness to Professor Stephen Hawking, his family and team.

KONP, Health Campaigns Together and our allies are all are pledged to continue the campaign to reinstate the NHS fully in this its 70th year: ready to work with Labour in developing serious legislation to take back the NHS into public ownership and provision; ready with support for Eleanor Smith MP with her NHS Bill campaigning 10-minute bill (second reading 26 October).

We are ready to up the campaign against the pernicious spread of wholly-owned subsidiary companies and integrated care systems up and down the land; and to demand that the Government change political course away from fragmentation, underfunding and privatisation of the NHS – soon to face another worrying winter for its staff striving to look after our population.

Tony O’Sullivan